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State v. Duncan

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
HERMAN R. DUNCAN, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-624839-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Owen M. Patton, Assistant Prosecuting Attorney, for appellee.

          Thomas A Rein, for appellant.

          JOURNAL ENTRY AND OPINION

          RAYMOND C. HEADEN, J.

         {¶ 1} Defendant-appellant Herman R. Duncan ("Duncan") appeals from his sentence.

         Factual and Procedural History

         {¶ 2} The charges in this case stem from a January 5, 2018 incident at a bar in Bedford, Ohio. Duncan was dancing with two women when a group of men came up to them on the dance floor and a fight broke out. Duncan was beaten by these men. He left the bar, went to his car to retrieve a gun, and returned to fire a shot through the window of the bar toward the dance floor.

         {¶ 3} On January 16, 2018, Duncan was indicted on two counts of felonious assault and one count of having weapons while under disability. Both felonious assault counts carried repeat violent offender specifications and multiple firearm specifications. Duncan pleaded not guilty to the indictment.

         {¶ 4} On May 2, 2018, a plea hearing was held. After the trial court engaged Duncan in a plea colloquy pursuant to Crim.R. 11, the court accepted Duncan's guilty plea to an amended count of felonious assault with a three-year firearm specification. The remaining counts and specifications were dismissed, and Duncan was referred to the probation department for a presentence investigation and report and to the psychiatric department for a mitigation report.

         {¶5} On May 30, 2018, the trial court held a sentencing hearing. The prosecutor, defense counsel, and Duncan each addressed the court. The court sentenced Duncan to an aggregate prison term of ten years, made up of seven years on the felonious assault charge and three years on the firearm specification. Duncan appeals his sentence, presenting one assignment of error for our review.

         Law and Analysis

         {¶ 6} In his sole assignment of error, Duncan argues that the record clearly and convincingly fails to support the imposition of more than a minimum sentence upon him.

         {¶ 7} Pursuant to R.C. 2953.08(G)(2), a reviewing court may increase, reduce, or otherwise modify a felony sentence if it clearly and convincingly finds that either (a) the record does not support certain required statutory findings or, (b) the sentence is otherwise contrary to law. A sentence is contrary to law if the court fails to consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.

         {¶ 8} R.C. 2929.11(A) establishes that the overriding purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender using the minimum sanctions that the court determines will accomplish those purposes. While sentencing courts have discretion to determine how best to comply with these purposes, RC. 2929.12 provides a list of factors that courts must consider in felony sentencing. Courts must carefully consider these purposes and factors, but "it is not necessary for the trial court to articulate its consideration of each individual factor as long as it is evident from the record that the principles of sentencing were ...


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